State v. Anthony

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-04-0098-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR2001-011704
DAVID LAMAR ANTHONY, )
)
Appellant. )
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Frank T. Galati, Judge

REVERSED AND REMANDED
________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel
Capital Litigation Section
Amy Pignatella Cain, Assistant Attorney General Tucson
Attorneys for the State of Arizona

JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER Phoenix
By Tennie B. Martin, Deputy Public Defender
Stephen J. Whelihan, Deputy Public Defender
Attorneys for David Lamar Anthony
________________________________________________________________

H U R W I T Z, Justice

¶1 On July 7, 2001, Donna Jean Anthony and her two

children failed to arrive in Ohio as planned for a family visit.

David Lamar Anthony, Donna’s husband, was later charged with

murdering the three. Anthony was convicted of three counts of

first-degree murder after a jury trial in Maricopa County

Superior Court; three death sentences were imposed.
¶2 This is an automatic appeal pursuant to Arizona Rule

of Criminal Procedure 31.2(b) from the convictions and

sentences. We have jurisdiction under Article 6, Section 5(3)

of the Arizona Constitution and A.R.S. § 13-4031 (2001).

I.

¶3 At the time of trial, the bodies of the victims had

not been recovered. Anthony did not admit to the crimes and

there were no witnesses to the murders. The State’s case was

therefore built on circumstantial evidence. We begin by

summarizing that evidence.1

A.

¶4 Anthony and Donna were married in 1997. Donna had two

minor children from a previous marriage – Danielle Romero, born

in 1987, and Richard Romero, born in 1988 – both of whom lived

with the Anthonys. The Anthony marriage was troubled almost

from the outset. Donna and Anthony frequently argued and the

evidence suggests that Anthony was unfaithful. Donna apparently

did not trust Anthony in financial matters. In late 2000, the

family home was refinanced. Donna instructed the mortgage

officer not to release the loan proceeds, approximately

1
We view the facts in the light most favorable to sustaining
the jury’s verdict. See State v. Tucker, 205 Ariz. 157, 160
n.1, 68 P.3d 110, 113 n.1 (2003).

2
$105,000, to Anthony. She deposited the check into her personal

savings account at Bank One, which Anthony could not access.

¶5 On June 25, 2001, Donna bought plane tickets for her

and the children to visit her family in Columbus, Ohio; their

flight was to leave Phoenix on July 7. Three days later,

someone changed the personal identification number (“PIN”) on

Donna’s Bank One account. Later that week, Anthony arranged to

buy a new pickup truck, but delayed closing the purchase until

July 7, telling the salesman that he shortly expected to “com[e]

into some money.” Just before Donna and the children were

scheduled to leave town, Anthony arranged for a carpet cleaning

service to come to the home on July 9.

B.

¶6 At 6:00 p.m. on July 6, Donna came home from work and

took a nap. Anthony was also at home. At 6:51 p.m., a call was

made from Donna’s mobile phone to Bank One; the caller

transferred $84,000 – virtually all of the money remaining from

the home refinancing – from Donna’s account to the Anthonys’

joint checking account. This transaction required use of the

PIN created on June 28.

¶7 After Donna awoke on July 6, she went to work at a

second job at the post office. At 2:18 a.m. on July 7, she

clocked out of her shift. At 3:30 a.m., her credit card was

used at a gas station between her home and the post office. At

3
5:57 a.m., Donna’s mobile phone was used to call Bank One

customer service. Shortly thereafter, the voicemail on Donna’s

mobile phone was called three times. Donna’s mobile phone was

never used again. Donna, Danielle, and Richard did not board

their 7:35 a.m. flight on July 7 from Phoenix to Las Vegas or

the connecting flight from Las Vegas to Columbus.

¶8 When Donna and the children failed to arrive in Ohio

as scheduled, Donna’s family attempted unsuccessfully to contact

Anthony. The family then asked law enforcement to investigate.

Early the next morning, July 8, a Maricopa County Sheriff’s

Office (“MCSO”) deputy went to the Anthony residence. The

deputy told Anthony that Donna and the two children had not

arrived in Ohio. Anthony did not seem “overly surprised” and

did not ask the deputy to search for them. Later that morning,

Anthony finalized his purchase of the pickup truck, writing a

$39,147.17 check from the couple’s joint account.

¶9 On the evening of July 9, Donna’s truck was found in a

supermarket parking lot in Phoenix. The doors were unlocked and

the keys were in the ignition. There was no sign of forced

entry. The vehicle had been recently washed.

¶10 On July 9, Anthony purchased a new mattress; he paid

cash and gave the store a false name and address. That same

morning, Anthony arranged for house cleaners to come to the

residence on the following day. At 11:00 a.m., the previously

4
scheduled carpet cleaners arrived. One of them helped Anthony

remove the old mattress from the master bedroom.

¶11 Anthony told the carpet cleaners that his dog had bled

on the office carpet and asked them to clean it. Anthony said

that he had tried to remove the stain and the carpet appeared as

if it had been cleaned.

¶12 At 3:41 p.m., an MCSO deputy returned to the Anthony

residence. The carpet appeared to have been cleaned recently,

and the house looked “immaculate” with a strong smell of

Pinesol. Anthony told the deputy that he did not want Donna

listed as missing because she might get angry if detained by

officers responding to such an alert. That evening, Anthony

bought a new clothes washer, clothes dryer, and vacuum cleaner.

¶13 On the morning of July 10, the house cleaners arrived

and Anthony instructed them to focus on the baseboards and “the

dirty areas on the walls.” One of the cleaners saw Anthony

place new pillowcases on the bed in the master bedroom. The

sheets on the bed also appeared to be new.

¶14 On the same day, Anthony wrote a check to himself for

$40,000 from the joint checking account. He deposited the check

into a checking account that he shared with his son.

C.

¶15 Anthony was questioned several times by MCSO officers

in connection with the family’s disappearance. He told

5
detectives that Donna and the children had left for the airport

between 5:00 and 5:30 a.m. on July 7. He said Donna customarily

carried large amounts of cash and sometimes wore expensive

jewelry; he suggested that she may have put herself in danger by

driving through the wrong neighborhood. He also speculated that

Donna may have driven to the airport, but then decided to drive

to Las Vegas. Anthony claimed that “they” had transferred the

funds from Donna’s account into the joint account; $40,000 was

to be used for the new truck and the balance to settle a pending

lawsuit with neighbors.2 He denied any marital problems.

D.

¶16 From July 17 until July 19, 2001, the MCSO executed a

search warrant at the Anthony residence. During the search,

carpeting, drywall, and bedding were removed for forensic

testing. If blood stains were apparent during the search, MCSO

detectives took samples for testing. If no blood stains were

visible, the detectives applied Luminol, a chemical that

fluoresces when it comes into contact with blood, to suspect

areas. When the Luminol test was positive, samples were

collected. Because Luminol can give false positives, analysts

later ran another test to confirm the presence of blood.

2
The evidence at trial indicated, however, that a proposed
settlement would have required the neighbors to pay the
Anthonys, not the other way around.

6
¶17 Detectives found a new mattress in the master

bedroom. The bedding in the master bedroom and in Danielle’s

room was also new. In the trash bins, detectives recovered a

two-liter bottle of Pinesol, several pairs of rubber surgical

gloves, and two knives. There were traces of blood on both

knives, but the blood was too degraded for DNA analysis.

¶18 In the master bedroom, small drops of blood (totaling

about the volume of one sugar cube) were found on the wall

behind the bed. DNA testing identified some of the blood as

Donna’s. The DNA of a second person was also found; Anthony

could not be excluded as the possible contributor. Carpeting to

the right of the bed also tested positive for blood.3

¶19 In the home office, three spots on the carpeting

several inches in diameter tested positive for blood. The

concrete slab underneath the carpet had a visible stain that

tested positive for blood. The blood on the concrete slab was

Danielle’s.

¶20 In Richard’s room, the side of the mattress, the side

of the box springs, a body pillow, and a wall tested positive

for blood. The blood on the mattress and on the body pillow was

Richard’s. Blood from an unidentified person was also found on

3
The detectives found a .38 revolver behind an air vent.
The gun had been cleaned, and it could not be determined whether
it had recently been used.

7
the side of the mattress; Donna and Danielle could not be

excluded as contributors. In the hallway outside the children’s

rooms, four spots on the wall tested positive for blood. One of

the stains contained Richard’s DNA, as well as DNA that was

consistent with either Donna or Danielle.

¶21 A hamper in the children’s bathroom tested positive

for blood. Blood was found on the coat closet door, on the

threshold of the door leading from the kitchen to the backyard,

on the exterior wall just outside the door between the kitchen

and the backyard, on the back patio, and on a wooden picnic

bench on the patio. Several spots in the garage tested positive

for blood.

¶22 The State’s expert testified that the volume of blood

discovered in the house was too small to prove either that the

victims had died or the cause of any death.

¶23 Donna’s truck was also subjected to forensic

examination. Dried desert vegetation was found on the truck’s

undercarriage, the interior door handle, and in the driver’s

door hinge. The vehicle was processed for latent fingerprints,

but only five were found. This low number, together with wipe

marks all over the truck, suggested that someone had cleaned

fingerprints from the vehicle. The driver’s door, the interior

door panel, the steering column, and the back of the passenger

seat tested positive for blood. The bed liner, tailgate liner,

8
and tailgate also tested positive for blood. The blood on the

tailgate liner was consistent with the DNA of both Donna and

Danielle.

E.

¶24 Anthony was indicted for the first-degree murders of

Donna, Danielle, and Richard on August 10, 2001; the State

subsequently filed a notice of intent to seek the death penalty.

The jury found Anthony guilty on all three counts on April 1,

2002. Penalty proceedings began before a new jury on February

18, 2004.4 On March 2, 2004, that jury found three aggravating

circumstances: A.R.S. §§ 13-703(F)(5) (pecuniary gain), -(F)(8)

(multiple homicides), and -(F)(9) (victim under the age of

fifteen). On March 10, after the penalty phase, the jury

returned death verdicts for each murder.

II.

¶25 Anthony raises eight issues on appeal. Because we

conclude that one issue requires reversal, we limit our

discussion to that issue.

A.

¶26 Although no stains were visible on the bed in

Danielle’s room, a Luminol test on the mattress was positive. A

4
After the convictions, the Supreme Court of the United
States decided Ring v. Arizona, 536 U.S. 584 (2002). Subsequent
legislation provided for a jury trial as to both the existence
of aggravating circumstances and the appropriate sentence. See
State v. Ring, 204 Ariz. 534, 545 ¶ 13, 65 P.3d 915, 926 (2003).
9
subsequent forensic examination confirmed the presence of blood

on the underside of the mattress top. A portion of the fabric

where the stain was found was then subjected to DNA testing,

which revealed at least three contributors. Danielle was

identified as the “primary” contributor. The secondary

contributors could not be positively identified, although

Anthony and Donna could not be excluded.5 The State’s experts

could not opine as to when or in what order the three DNA

samples were deposited. The underside of the mattress top also

tested positive for semen, which was identified as aspermatic.

Anthony’s semen was aspermatic as a result of a vasectomy.

¶27 The State contended that the forensic evidence from

the underside of the mattress top showed that Anthony had

sexually molested Danielle and that this was Anthony’s motive

for killing her. Anthony’s lawyers filed a pre-trial motion in

limine seeking, inter alia, to exclude “[a]ny suggestion or

allegation” that Anthony had sexually molested Danielle.

¶28 After considering briefing on the motion in limine and

extensive oral argument, the superior court firmly rejected

Anthony’s motion:

5
The State’s expert explained his opinion that a particular
person “could not be excluded” as meaning that the person was a
“possible” donor. The expert contrasted such an opinion with
other testimony that a specific donor had been identified; in
that case, the expert positively opined as to the identity of
the donor.
10
 The state has circumstantial evidence that something
sexual happened, and the state – whether you like the
weight or not, you can argue the weight but what
they’ve got is apparently semen mixed with Danielle’s
blood in Danielle’s bed. That is untoward and that is
evidence that they’re going to be allowed to get into.
You can attack it any way you want, but they’re
certainly allowed to argue an inference from that that
something sexual was going on. They’re certainly
allowed to argue that. It is an inference to be
drawn. Whether the jury accepts it or not is their
business, but that’s certainly allowable and if
there’s other evidence to bolster that, it seems to me
it’s relevant; it will come in.

B.

¶29 A significant portion of the trial was dedicated to

evidence about the alleged molestation. The State presented

evidence that Anthony had a vasectomy; that condoms were found

in the septic tank; that Danielle had told a relative that

Anthony was her “least favorite person”; and that Anthony had

placed his hands on Danielle’s chest and crotch while playing

basketball.

¶30 In response, the defense offered evidence that

Danielle was menstrual and that the small blood stain was in the

middle of the bed. The defense also presented testimony of

Ethan Ducharme, Richard’s friend, that he and Richard had bought

condoms and flushed them down the toilet; testimony that Anthony

and Donna had slept several times on the mattress in Danielle’s

room; and testimony that Danielle was a straight “A” student

11
whose academic performance did not deteriorate during the time

she was allegedly being molested.

¶31 In his closing argument, the prosecutor asked the jury

to conclude that Anthony had molested Danielle and murdered her

to cover up the molestation. The State returned to this

argument and the evidence that allegedly supported it nearly a

dozen times throughout its closing and rebuttal arguments. The

prosecutor referred to Anthony as “a child molester” twice.

¶32 During the defense closing, Anthony’s attorney argued

that the evidence of molestation was so weak that the State had

not even charged Anthony with this crime. The prosecutor

responded as follows during rebuttal:

[W]e obviously didn’t charge him with [molestation]
because we can’t prove beyond a reasonable doubt what
day or what month it occurred. And Danielle Romero is
not here to tell you about it. But let me ask you
this. If Danielle – if this was a trial in which
Danielle was accusing her stepfather of sexually
abusing her and she testified to that, and we had
physical evidence showing his semen on her bed mixed
in with her blood, would you convict him? I think you
would.

Well, Danielle isn’t here. And that’s the point.
She’s dead. And that’s one of the reasons why she’s
dead. To keep her from telling anybody about it.

C.

¶33 Anthony argues that the superior court erred in

allowing the State to argue that he molested Danielle. A

defendant’s prior bad acts are not admissible “to show action in

12
conformity therewith,” but can be used to prove “motive,

opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident.” Ariz. R. Evid. 404(b).

Although the jury must ultimately determine whether the other

act is proved, “before admitting evidence of prior bad acts,

trial judges must find that there is clear and convincing proof

both as to the commission of the other bad act and that the

defendant committed the act.” State v. Terrazas, 189 Ariz. 580,

582, 944 P.2d 1194, 1196 (1997). Even if the trial judge

concludes that the prior act is shown by clear and convincing

evidence, the judge must also (1) find that the act is offered

for a proper purpose under Rule 404(b); (2) find that the prior

act is relevant to prove that purpose; (3) find that any

probative value is not substantially outweighed by unfair

prejudice; and (4) give upon request an appropriate limiting

instruction. Id. at 583, 944 P.2d at 1197.

D.

¶34 The trial court concluded that there was

“circumstantial evidence that something sexual happened” and

that there was a possible “inference to be drawn” of “untoward”

activity. The appropriate question under Terrazas, however, is

whether there was clear and convincing evidence that Anthony

molested Danielle. The trial court erred by applying the wrong

legal standard to its evaluation of the prior bad acts evidence.

13
State v. Vigil, 195 Ariz. 189, 192 ¶ 16, 986 P.2d 222, 225 (App.

1999).

¶35 Analyzing the DNA evidence under the Terrazas clear

and convincing evidence standard, we conclude that the

allegation that Anthony molested Danielle should have been

excluded.6 Three DNA profiles were in the tested portion of the

mattress: Danielle’s and possibly those of Anthony and Donna.

The State’s expert could not opine that the blood found was in

fact Danielle’s, only that she was the primary DNA contributor.

The expert also could not opine that Anthony in fact contributed

any DNA to the sample; he testified instead only that Anthony

could not be excluded. Nor could the expert conclude that the

semen was Anthony’s, only that it was aspermatic.

6
The decision whether to admit evidence of prior bad acts
under Rule 404(b) is normally left to the trial judge’s sound
discretion. State v. Gulbrandson, 184 Ariz. 46, 60, 906 P.2d
579, 593 (1995). In this case, however, there is no dispute
about the critical facts – the defense did not contest the
accuracy of the DNA analysis of the mattress top. The issue for
decision is thus purely legal – whether the uncontested facts
constituted clear and convincing evidence that Anthony molested
Danielle. See State v. Bible, 175 Ariz. 549, 595, 858 P.2d
1152, 1198 (1993) (stating that we review determinations about
whether evidence satisfies the requisite legal standard de
novo); State v. Chapple, 135 Ariz. 281, 297 n.18, 660 P.2d 1208,
1224 n.18 (1983) (noting that determinations made on undisputed
facts present questions of “law or logic”).

14
¶36 It is reasonable to assume that the aspermatic semen

was Anthony’s. It is also reasonable to assume that the blood

was Danielle’s. But even making these assumptions, the forensic

evidence at most established that, at some point or points in

time, Anthony’s semen, Danielle’s blood, and the DNA of a third

person, perhaps Donna, were left on the mattress. There was no

evidence as to when the three individuals left the DNA, let

alone whether any two of them left DNA at the same time.

¶37 This evidence fell far short of proving either that

Danielle was molested or that Anthony had done so.7 It is clear

that Anthony and Danielle were not the only prior users of the

mattress; the tested sample also contained DNA of a third

contributor, perhaps Donna. It is difficult to understand how

all three DNA contributions could have been made simultaneously;

at least two of three DNA contributors were almost surely on the

mattress at different times. This evidence, even taking all

inferences in the light most favorable to the State, simply does

7
The superior court appeared to consider only the mattress
stain evidence in allowing the State to allege molestation.
Even looking favorably on the cumulative evidence presented,
however, we cannot conclude that there was enough for a jury to
conclude by clear and convincing evidence that molestation
occurred. The presence of condoms in the septic tank is not
strong evidence that Danielle was molested, and the testimony of
the neighbor who saw Anthony touching Danielle while playing
basketball is not very probative on the issue of whether Anthony
had sexual relations with Danielle.

15
not establish that Danielle and Anthony were simultaneous

occupants of the bed, much less that he molested her.8

E.

¶38 Anthony did not object at trial to the DNA evidence or

to the State’s final arguments. The State therefore contends

that our review is limited to fundamental error. See State v.

Henderson, 210 Ariz. 561, 567 ¶ 19, 115 P.3d 601, 607 (2005).

Anthony not only objected to the State’s molestation allegations

in his written motion in limine, however, but also strenuously

reiterated his objections under Rule 404(b) during the oral

argument on that motion. The court directly addressed those

arguments and ruled squarely against Anthony. “[W]here a motion

in limine is made and ruled upon, the objection raised in that

motion is preserved for appeal, despite the absence of a

specific objection at trial.” State v. Burton, 144 Ariz. 248,

250, 697 P.2d 331, 333 (1985). We therefore must determine

8
We need not today decide whether the superior court should
have also have excluded the State’s allegations because any
probative value was substantially outweighed by potential
prejudice. We note, however, that we have repeatedly cautioned
that “[t]here will be situations in which evidence sought to be
introduced is more prejudicial than probative, and those
situations are very likely to arise in the prior bad act
context.” State v. Ives, 187 Ariz. 102, 111, 927 P.2d 762, 771
(1996); see also State v. Taylor, 169 Ariz. 121, 124, 817 P.2d
488, 491 (1991) (“‘The discretion of the trial judge under Rule
403 to exclude otherwise relevant evidence because of the risk
of prejudice should find its most frequent application in th[e
404(b)] area.’”) (quoting 1 Morris Udall et al., Arizona
Practice: Law of Evidence § 84 (3d ed. 1991)).
16
whether the error below was harmless. Henderson, 210 Ariz. 561

at 567 ¶ 18, 115 at 607.

¶39 “Error, be it constitutional or otherwise, is harmless

if we can say, beyond a reasonable doubt, that the error did not

contribute to or affect the verdict.” Bible, 175 Ariz. at 588,

858 P.2d at 1191; accord State v. Bolton, 182 Ariz. 290, 303,

896 P.2d 830, 843 (1995). “‘The inquiry . . . is not whether,

in a trial that occurred without the error, a guilty verdict

would surely have been rendered, but whether the guilty verdict

actually rendered in this trial was surely unattributable to the

error.’” Bible, 175 Ariz. at 588, 858 P.2d at 1191 (quoting

Sullivan v. Louisiana, 508 U.S. 275, 279 (1993)). The State has

the burden of convincing us that any error was harmless. Id.

¶40 We are unable to conclude that the State has

discharged this burden here. The trial court properly

instructed the jury that the “other acts” evidence could be

considered only on the issue of Anthony’s motive to murder

Danielle, not as proof that he did so. But, as we noted in

Terrazas,

[s]uch evidence is quite capable of having an impact
beyond its relevance to the crime charged and may
influence the jury’s decision on issues other than
those on which it was received, despite cautionary
instructions from the judge. Studies confirm that the
introduction of a defendant’s prior bad acts can
easily tip the balance against the defendant.

17
189 Ariz. at 584, 944 P.2d at 1198 (internal citations and

quotations omitted). The danger of prejudice is markedly

heightened when the “other act” allegation is that the defendant

molested his step-daughter. Moreover, the allegation here was

not a passing reference, but rather a repeated theme of the

State’s closing argument.9

¶41 We can find error harmless when the evidence against a

defendant is so overwhelming that any reasonable jury could only

have reached one conclusion. See State v. Sansing, 206 Ariz.

232, 237 ¶ 16, 77 P.3d 30, 35 (2003) (finding constitutional

error harmless because no reasonable jury could have failed to

find a capital aggravating circumstance); State v. Ring, 204

Ariz. 534, 560 ¶ 79, 65 P.3d 915, 941 (2003) (articulating

harmless error standard). But this is not such a case. The

evidence of Anthony’s guilt was sufficient to support the

judgments of conviction. But the issue before us is not whether

the jury was justified in its verdict or even whether we would

reach the same result. Rather, we must determine whether the

State has demonstrated that the verdict was “surely

unattributable” to the allegation that Anthony had molested his

step-daughter.

9
We do not suggest any misconduct on the part of the State.
The prosecution properly obtained a ruling from the superior
court that it could make such arguments and scrupulously
reminded the jury that evidence of other acts could be
considered only on the issue of motive.
18
¶42 Applying the “stringent concepts” of harmless error

review, Bible, 175 Ariz. at 588, 858 P.2d at 1191, we are unable

to conclude beyond a reasonable doubt that the improperly

admitted allegations of child molestation did not affect the

verdict. We are therefore constrained to reverse.

III.

¶43 For the reasons above, we reverse Anthony’s

convictions and remand for a new trial.

_______________________________________
Andrew D. Hurwitz, Justice

CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
W. Scott Bales, Justice

19